Title: Democracy and Deference: A Theory of Campaign Finance Jurisprudence
Abstract: The Supreme Court's modern campaign finance jurisprudence features a debate between Justices who believe the government's anticorruption interest is limited to preventing quid pro quo exchanges, and those who argue that the anticorruption interest extends further. What animates the competing conceptions of corruption offered by these factions of jurists? A recent article by Professor Deborah Hellman theorizes that corruption is a derivate concept, dependent on underlying assumptions about democratic norms. The presence of democratic assumptions, Hellman posits, counsels for greater deference than the Court currently displays.
This article builds upon the work of Hellman and others by closely examining the jurisprudence to illustrate how disagreements about democracy and deference are in fact at the jurisprudence's center. This descriptive account organizes the jurisprudence into layers, with the Justices' disagreements about speech rights on the periphery, and debates about democracy and deference toward the core. In light of the observation that the Justices' disputes over democracy and deference animate the jurisprudence, the article goes on to propose a new methodology for deciding campaign finance cases. This methodology, which I call Functional Democratic Deference, suggests that courts should defer to legislative conceptions of corruption and democracy when the campaign finance regulation in question reasonably furthers either the First Amendment's function of protecting public opinion formation, or of ensuring legislative responsiveness thereto. The Functional Democratic Deference methodology improves upon the Court's current methodology, and those proposed by others, by pinpointing the decisional step at which deference is most appropriate -- determining the scope of the anticorruption interest -- but still leaving the Court latitude to intervene where judicial skepticism is warranted.
Publication Year: 2017
Publication Date: 2017-01-01
Language: en
Type: article
Indexed In: ['crossref']
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